from the way-to-go dept

If you were gaming on a PC just after the turn of millennium, you likely fondly remember the classic game No One Lives Forever. A genre turning first-person shooter that featured a strong, reasonably dressed female hero and a setting inspired by 1960's spy films was received incredibly well by both critics and fans. And, because retro PC gaming continues to have a strong following, any of you that know what we're talking about here are probably thinking you'd like to fire up a copy of No One Lives Forever on your updated machine and give it another go. Well, you can't. You should be able to, but you can't. And you have a complicated web of copyright and trademark rights-holders to thank for it.

Even if you're a fan of retro-gaming, you may not be familiar with the company Night Dive Studios. Night Dive is the group that buys up the rights to older games, optimizes them for new machines, and then re-releases them on Steam and other outlets like GOG.com. They've done this with big-name titles in the past and they really wanted to do the same with No One Lives Forever and its sequel. And, because this is a reputable business we're talking about, they decided to secure the rights for the game first. And that's where it all went to hell.

Night Dive's detective work began with tracking down and speaking with the game's original developer and publishers. That meant getting in touch with the three main players: Warner Bros., Activision, and 20th Century Fox.

NOLF and its sequel were developed by Monolith, who are now owned by Warner Bros., under whom they released the acclaimed action game Shadow of Mordor just last year. NOLF was made using a framework called the LithTech engine, which is also now owned by Warner Bros. However, the first game was published by Fox Interactive, and there's a question of whether 20th Century Fox or even Activision might have partial rights to the series, due to Activision's 2008 merger with Vivendi, a separate media company that had acquired Fox Interactive in 2003.

Here's where this gets really depressing. Because the game was released in an age before digital document filing was in widespread use, the rights contracts and paperwork we're talking about here are all literally paperwork. And, after communicating with Activision, Fox, and Warner Bros., the response from all three was to essentially state, "We don't really know if we have any rights here, and we aren't going to look for the paperwork to make sure, but if you make the game and it turns out we do have those rights you'll be facing legal action from us." Keep in mind, this was the response from all three publishers who would take legal action concerning rights all three couldn't be bothered to determine if they even had. You can imagine how frustrating that must be when, like Night Dive's Larry Kuperman experienced, you just want to re-release a game and nobody can tell you who owns it. Take Kuperman's interaction with Activision, for instance, to get an idea of how absurd this all is.

"So we went back to Activision and, [after] numerous correspondence going back and forth, they replied that they thought they might have some rights, but that any records predated digital storage. So we're talking about a contract in a box someplace." Kuperman laughed. "The image I get is the end of Indiana Jones… somewhere in a box, maybe in the bowels of Activision, maybe it was shipped off to Iron Mountain or somewhere. And they confessed, they didn't have [their] hands on it. And they weren't sure that they even had any of those rights."

In a sane world, intellectual property rights that a company can't be bothered to find out if they even have shouldn't be rights that can then be sued over. Either they're important or they aren't, and if they're important they should be maintained.

The upshot of this is that Night Dive discovered that, surprisingly, nobody owned the trademark for the game, so they filed a claim to it. Months later, Kuperman found out that Warner Bros. had filed an opposition to get an extension on the time they could use to determine if they had a trademark claim to the name. Again, they didn't know if they had the rights, but they wanted to find out just to see if they could enforce legal action with them. The trademarks and other intellectual property would be used solely for legal action, as it quickly became clear that none of the companies involved had any interest in actually helping Night Dive re-release the game, even if they could have made money off of the arrangement.

We wanted Warner involved with this," Kuperman told me, "so we said, there's two ways we could work together. First, and our preference, is that we would do a licensed deal. We would pay them some amount of money up front to show that we're serious, and then we would give them a backend share of revenues. And if that didn't work for them, if they wanted to be the publisher of record, we'll still do the development and the optimization of the game, and instead of our giving them a backend share, [they] give us a backend share. In either case, it seemed to us that they were gonna be making money that they wouldn't have been making otherwise, with a minimum amount of effort. We weren't meeting with a lot of enthusiasm. In fact, most of the phone calls were like, 'That'll probably never happen.'"

Activision and Fox responded similarly, saying they weren't sure if they had any rights but not offering any kind of permission to move forward and retaining the option of legal action if Night Dive re-released the game. Keep in mind, please, that this frustrating nonsense is all the result of Night Dive attempting to do the right thing and license the game properly. And, for those efforts, they even got a legal threat from Warner Bros., because apparently nobody over at Warner bothers to talk between departments.

Then, in December of 2014, Kuperman and Kick heard from a lawyer representing Warner Bros. Kuperman explained: "Steve [got] what I like to call, the legal term for it is a 'Scary Letter.' It comes from an attorney representing Warner Bros. and basically says they're aware of our filing for trademark, that they had contested that, and that if we went forward, specifically with a new version of No One Lives Forever, without doing a new deal with them, we would be infringing their rights and the hammer would fall."

And that was after Night Dive had been desperately trying to do such a deal and meeting with nothing but questions over whether any of these rights Warner's lawyer mentioned even existed. Warner further followed up saying they were no longer interested either in working with Night Dive to publish the game or publish it themselves, meaning Warner Bros. has made the conscious decision to let No One Lives Forever die off for good. Night Dive says it has given up the attempt and gamers who wanted a legitimate way to get a beloved old game are forced down the roads publishers claim are evil.

The people at Night Dive have ceased their attempts to re-release No One Lives Forever. They now control the trademark, but without a game to use it on, they're going to let it lapse. No One Lives Forever will remain unavailable on digital stores, and modern gamers who want to play the games will have to either track down scarce physical copies or resort to illegally torrenting them.

Intellectual property: important enough to publishers that they'll use it to kill off the attempt to release an old game, but not important enough to know if they actually have the rights to begin with.

from the not-really-a-'dispute'-system-then,-is-it? dept

If nothing else, Universal Music Group is becoming a case study for everything that's wrong with YouTube's takedown system. Between nuking its own artists' official videos, targeting MegaUpload's video simply because it utilized some of its roster and using its direct partnership with YouTube to blow past any fair use considerations, UMG has been able to wreak a fair amount of havoc.

Norwegian musician Bjorn Lynne… has had two of his videos hijacked by Universal Music Group (UMG) which is now running ads alongside his work.

“Can I just state publicly that I hate Universal Music Group. For the second time now, they have hijacked my music and claimed ownership of it in all YouTube videos that include my music, thereby monetizing my music,” Lynne writes.

Lynne isn't exaggerating. UMG owns the rights to an audiobook that uses one of Lynne's songs as a backing track. No problem up to this point, because anyone -- even UMG -- can use Lynne's tracks if properly licensed, which this apparently was. No, the problem is that UMG is claiming -- by proxy -- that it "owns" Lynne's track.

UMG have entered the audiobook in YouTube’s Content-ID system, and as a result they’ve hijacked the ads on the original video.

Which is why leaving infringement detection up to algorithms is a bad idea, even if doing otherwise is technically unfeasible. According to Content ID, the backing track belongs to UMG. That's a problem, but it's a fixable one. All it would take is for UMG to release the claim after having the error brought to its attention. But UMG clearly isn't in the business of resolving disputes. It's just there to claim everything Content ID says belongs to it, even when the content clearly doesn't.

“One thing would have been to have done this unwittingly, by mistake. But I have ‘disputed’ the claim on YouTube, written an explanation and told them about the origins of this music — then waited the FULL 30 DAYS that the claimant has to process the dispute, only to be told that UMG have reviewed the dispute and UPHELD their claim!” Lynne notes.

That's the process available to indie artists: sit back and let major players claim your stuff. If Company A rejects your dispute, the decision is final. In YouTube's eyes, the burden of proof always falls on the accused and the existence of proof ultimately has no bearing on the outcome. All the claimant has to do is push the "REJECT" button and someone else's ad money will be rerouted.

Lynee could fight this further, but it would take a stack of money and some ambitious lawyers -- neither of which most indie artists have at their disposal. The only thing UMG has to do is what it did: shrug and return to siphoning money away from Bjorn Lynne. The system works -- at least for the major players. For everyone else, it's just a matter of trying to mitigate the damage they can't prevent, much less reverse.

from the that's-not-fair dept

Patents are intellectual monopolies, designed to give the patent-holder control over an invention by excluding others from using it without permission. That's a problem when standards include patented elements. Anyone who wants to implement that standard must use the invention, which gives the patent-holder the ability, in theory, to demand and obtain any licensing deal it might propose. To limit that power, holders of these standard-essential patents are often required to agree to offer licensing terms on fair, reasonable and non-discriminatory (FRAND) terms.

Of course, that leaves open the rather important question of what exactly FRAND means in practice, and an interesting case before the Court of Justice of the European Union aims to obtain some guidance on this issue. The court itself has not yet handed down its judgment, but as usual, an Advocate General has offered his own thoughts as preliminary guidance (pdf). Here's the background to the case:

Huawei, a Chinese telecommunications company, holds a European patent regarded as 'essential' to the 'Long Term Evolution' (LTE) standard developed by the European Telecommunications Standards Institute (ETSI). The LTE standard relates to next generation -- that is to say, fourth generation -- mobile phone communications. Anyone complying with the standard inevitably uses the patent owned by Huawei, which is why that patent is categorised as 'essential'. Huawei is a member of ETSI and notified the patent to that institute. Huawei also made a commitment to ETSI to grant licences to third parties on fair, reasonable and non-discriminatory (FRAND) terms.

However, when another Chinese company, ZTE, sought a license from Huawei, they were unable to agree on the terms, so Huawei brought an action for infringement against ZTE. According to ZTE, Huawei's attempt to obtain an injunction against it constituted an abuse of its dominant position, since ZTE was willing to negotiate a license.
Here's the key part of the Advocate General's opinion. After making the alleged infringer aware of its infringement, the standard-essential patent-holder must also:

Present the alleged infringer with a written offer of a licence on FRAND terms and that offer must contain all the terms normally included in a licence in the sector in question, including the precise amount of the royalty and the way in which that amount is calculated.

The infringer must respond to that offer in a diligent and serious manner. If it does not accept the SEP holder’s offer, it must promptly present the latter with a reasonable counter-offer, in writing, in relation to the clauses with which it disagrees.

The rest of the opinion then goes on to fill out details of what is reasonable and unreasonable as the negotiations continue, and as recourse is made to the courts. In many ways, it's an attempt to flesh out what that problematic "fair, reasonable and non-discriminatory" means. But a far better solution would be to stipulate that all standard-essential patents must be licensed on an RF -- royalty-free, also known as requirement-free -- basis. That's precisely what the leading web standards body, the W3C, specifies in its patent policy:

In order to promote the widest adoption of Web standards, W3C seeks to issue Recommendations that can be implemented on a Royalty-Free (RF) basis. Subject to the conditions of this policy, W3C will not approve a Recommendation if it is aware that Essential Claims exist which are not available on Royalty-Free terms.

To this end, Working Group charters will include a reference to this policy and a requirement that specifications produced by the Working Group will be implementable on an RF basis, to the best ability of the Working Group and the Consortium.

It's quite reasonable to expect holders of standard-essential patents to agree to RF licensing since the inclusion of their invention in a standard is, in itself, an important benefit: it places the patent-holder at the center of the standard, and enhances its influence over the field it refers to. It also helps it avoid the need for costly and pointless lawsuits like the one between Huawei and ZTE.

You might have noticed Steam downloading a sizeable update for Grand Theft Auto: San Andreas over the weekend and wondered what that was about. A fancy secret tying into GTA V's return to the west coast, perhaps? Not quite. The patch added support for XInput controllers like the Xbox 360 pad, which is nice, but also removed seventeen songs from various radio stations. No more angsting out and gunning it across Gant Bridge in the wrong lane listening to Killing in the Name, I'm afraid.

There's no such thing as a perpetual or "forever" license, not when it comes to content. RockstarNexus has the full list, which seems to include the same 17 songs removed from the iOS versions prior to release. IPhone/iPad users will know these songs are missing going in. But those who purchased the game through Steam are only finding this out after the fact. Rockstar released no patch notes and any account set to auto-update went ahead and stripped content right out of purchasers' games.

It's not like Rockstar didn't have options. It has dealt with music licensing issues before, but never in a way that has affected previously purchased games.

When music rights expired for some songs in GTA: Vice City, Rockstar left them in for folks who already owned it then made a separate version without them for new purchasers. It's pretty unpleasant that they didn't do the same here too.

This would have been the right way to handle this. Bundling in content removal with various bug fixes and notifying no one ahead of time is terrible way to treat paying customers. Add to that the fact that the pushed update seems to be responsible for a number of deleted/bricked saves, and you've got a bit of a PR problem on your hands.

But underneath it all lies the absurdity of licensing. Rockstar licensed songs from labels only to see them expire more quickly than the game's marketability. This put it in the position of having to retroactively alter its game, and it was those who purchased nothing more tangible than a license who were negatively affected. Sure, Rockstar will never be able to "own" the recordings used in its game, but it seems like purchasers should be able to keep their purchased goods intact, even if the purchased item is nothing more than ones and zeros scattered across a variety of storage devices.

The new law directly recognizes free licenses (which are fundamental for projects like Wikipedia or Linux). The authors of free content will be able to have legal protection from misuse of their works.

Freedom of panorama introduced.

Now it is allowed to take photos in any public territory. The photographers are no more formally offenders, as before when nobody was allowed to sell postcards with modern buildings without the permission of the architect or his successors (despite the fact that such situation was quite usual in practice). Unfortunately, monuments are still not covered by the introduced amendments.

As the Wikimedia blog post points out, the first of these is crucially important for Wikipedia and free software projects, both of which have existed in a kind of legal limbo until this latest move. That's probably meant that some Russian software companies have been unwilling to embrace licenses like the GNU GPL for their code for fear that it would be unprotected under local law. According to Wikimedia's Russian director, Vladimir Medeyko, the new provisions even go beyond what is found elsewhere:

The direct inclusion of the stipulations on the free licenses into the law is a progressive step not only for Russia, but worldwide. There are no specific articles on free licenses in other countries' laws, and hence these licenses are still in a grey area there. Actually, free licenses exploit the archaic tercentenary system of copyright, that always limited the readers' freedoms in order to allow the authors and the publishers to earn money, for the opposite goal -- to protect the readers' right to free access. Therefore, without direct regulation, there is too vast judicial discretion, and free licenses users are not protected perfectly. In the Russian law there are no uncertainties like that anymore.

Freedom of panorama refers to the right to take photos or videos of public spaces. As an interesting Wikipedia page indicates, this right is by no means universal, and so Russia is a welcome addition to the group of nations that do offer freedom of panorama in at least some form. The move is also a reminder that steady work by dedicated experts can achieve important results even against a retrogressive legal background.

from the because-of-course-people-should-have-this-right dept

As rights holders have made clear time and time again, your digital purchases are never truly yours. If someone decides to shut down a service, it's likely your purchases will vanish into the ether along with the service itself. If you want to resell your mp3s or ebooks, you're facing any number of unsettled legal questions and various industries pushing the assertion that your money was exchanged for a limited use license, rather than the acquisition of a product.

In a case of life imitating art, the new law basically accomplishes what the Daily Mail fictitiously reported in 2012 that Bruce Willis wanted to accomplish; ebooks and other digital content can now be inherited.

That's one small right restored. While rights holders still demand real money for permission to use their offerings in pre-approved ways, at least a few people in the US won't have the lives of their digital goods expire along with them.

The clunkily-titled Uniform Fiduciary Access to Digital Assets Act law does the following:

The Uniform Fiduciary Access to Digital Assets Act solves the problem using the concept of “media neutrality.” If a fiduciary would have access to a tangible asset, that fiduciary will also have access to a similar type of digital asset. UFADAA governs four common types of fiduciaries: personal representatives of a deceased person’s estate; guardians or conservators of a protected person’s estate; agents under a power of attorney; and trustees.

UFADAA defers to an account holder’s privacy choices as expressed in a document (such as a will or trust), or online by an affirmative act separate from the general terms-of-service agreement. Therefore, an account holder’s desire to keep certain assets private will be honored under UFADAA.

Even so, the ruling is very limited. Tech companies outside of Delaware will not be affected.

The new law in Delaware only affects Delaware residents and will be probated there. It does not affect the tech companies registered in the state, according to one spokesperson. “If a California resident dies and his will is governed by California law, the representative of his estate would not have access to his Twitter account under HB 345,” Kelly Bachman, a spokesperson for the Delaware governor’s office, said by email.

Some goods, like purchases, can be passed on. Online accounts will likely remain out of reach for now. The Uniform Law Commission is pushing for adoption of these sorts of laws elsewhere, so there could be more of this in the future. Things are looking up a bit for consumers, it would seem.

Year by year, consumers are gaining more rights over the digital content they buy. If this trend continues then it won’t be long before consumers have the same rights over digital content as they do over physical goods.

There's still a long way to go before an iTunes accounts resembles a box full of CDs or records and there's still too many here-today-gone-tomorrow platforms/services selling what amounts to limited digital access instead of actual products, but a small restoration of the right of first sale is still a step in the right direction. The real problem is that we need these laws in the first place, which is the direct result of rights holders placing their piracy fears above their paying customers' concerns. That attitude will be much tougher to fix.

from the thanks,-but-no-thanks dept

For too many years, the copyright industries fought hard against the changes being wrought by the rise of the Internet and the epochal shift from analog to digital. Somewhat belatedly, most of those working in these sectors have finally accepted that this is not a passing phase, but a new world that requires new thinking in their businesses, as in many other spheres. A recent attempt to codify that thinking can be found in a publication from the European Publishers Council (EPC). "Copyright Enabled on the Network" (pdf) -- subtitled "From vision to reality: Copyright, technology and practical solutions enabling the media & publishing ecosystem" -- that is refreshingly honest about the group's aims:

Since 1991, Members [of the EPC] have worked to review the impact of proposed European legislation on the press, and then express an opinion to legislators, politicians and opinion-formers with a view to influencing the content of final regulations. The objective has always been to encourage good law-making for the media industry.

The new report is part of that, and is equally frank about what lies at the heart of the EPC's vision -- licensing:

A thread which runs through this paper is the proliferation of 'direct to user’ licensing by publishers and other rights owners. Powered by ubiquitous data standards, to identify works and those who have rights in those works, licensing will continue to innovate exponentially so that eventually the cost of serving a licence is close to zero. The role of technology is to make this process seamless and effective from the user's perspective, whether that user is the
end consumer or another party in the digital content supply chain.

Seamless licensing will be made possible through the roll-out of ubiquitous Digital Rights Statements (DRS) containing information about identity, rights and -- you guessed it -- licenses:

The key point about a DRS is that once it exists, it can be searched, read and actioned by any other machine connected to the Internet. And once the DRS is indexed by a search engine, through the machine readable IDs contained in the DRS it will always be possible to find the person or entity who owns or administers the rights and the rights associated with it. From there, it will be possible to link to the service from which the rights can be obtained and the content accessed and, if applicable, paid for.

Furthermore, this infrastructure is well suited to a world of 'mash-ups' where one work will incorporate parts or elements of other works, because the relevant IDs can identify the whole of a work or granular elements of it.

As that makes clear, the EPS vision includes being able to pin down every single "granular" part of a mash-up, so that the rights can be checked and -- of course -- licensed. Call it the NSA approach to copyright: total control through total surveillance. The paper helpfully explores how that would work out in various specific situations encountered today. For example, the European publishers want to be able to use licensing to restrict access even to material on the open Internet:

Legal clarification is needed about the relationship between hyperlinks and licence terms on the websites (or other platforms) to which they link.
It must be clear that rights owners may by their licence terms to "restrict" access to content on an "open website" to a specific category of "the public" (e.g. users who visit the site directly), whether or not accompanied by technical protection measures.

So licenses would be able to forbid the use of hyperlinks to jump directly to pages, even though the latter were not locked down by DRM. The EPC is also worried about an "overbroad" interpretation of a general right to browse copyright material without needing an explicit license:

Whilst the general proposition that Internet browsing does not require a licence is reasonable, there remains a risk that an overbroad interpretation could mean that activities which ought properly to be licensable (e.g. the consumption of press cuttings) might cease to be so.

To tackle that, the EPC wants (pdf) "a new limited neighbouring right to stop unlicensed use of snippets," and also, for good measure, "[h]yperlinking to illegal copies to be treated as an infringement." Given this relentless focus on creating a permission-based Internet, it will come as no surprise that the EPC hates the idea of introducing fair use in Europe:

this is an issue which would require considerable evidence-based research in order to make a reasoned evaluation of the benefits of introducing a fair dealing exception compared with the uncertainty and other risks which would be caused by its introduction.

That call for "considerable evidence-based research" is rather rich, given the complete absence of it for all the recent changes to European copyright law in favor of publishers. Indeed, as Techdirt has frequently discussed, there is plenty of research to support reducing copyright's term and reach, but when this is brought up, publishers are strangely uninterested in evidence-based policy making, preferring to stick with the dogma-based kind. Naturally, the EPC thinks that instead of fair use, what people really need is more licensing:

Europe would be better positioned to reach a dynamic flexibility for increased uses by providing incentives to small scale licensing, both B2B and B2C, and automated licensing solutions.

Part IV of the report is entitled "Meeting users' needs in the new media & publishing ecosystem." That's a welcome emphasis, since it finally recognizes that the users are not just some passive recipient of what the publishers decide to throw at them. However, the section's focus is still resolutely on seeking permission for every possible use of copyright material.

For example, one of the areas where publishers are fighting fiercely against granting new copyright exceptions is for text and data mining. The refusal to contemplate anything but licensing as an option led to a group of researchers, SMEs, civil society organizations and open access publishers pulling out of the European Commission's "Licensing for Europe" fiasco. Here's what EPC has to say on the matter:

A new exception for text and data mining at EU level carries a huge risk from 'the law of unintended consequences'. A key theme running through our paper is the enabling role of technology in managing copyright. Given the increasing automation of rights management, the full potential of which we have yet to realise, including in the area of specific permissions, access to and use of content, we urge the European Commission to look at practical solutions first for serving the genuine needs of the research community before legislation.

Scare-mongering about an exception for text and data mining is bad enough, but it gets worse. In this same section, we read the following concerning the copyright needs of users with a disability:

There are undoubted challenges faced by this user group in being able to access digital content although publishers have been investing in voluntary solutions, including via ePub3 and voice-enabled services online.

The report then goes on immediately to mention:

The Marrakech Treaty is a recent exemplar. It provides a legal framework to facilitate access to published works for persons who are blind, visually impaired or otherwise print disabled.

That gives the impression that the Marrakech Treaty was something that publishers backed strongly as a fair way of helping those with disabilities. In fact, quite the reverse is true. To have that hard-won treaty for the visually impaired presented here as an example of how publishers can be relied on to do the right thing by the public is not just misleading but morally repugnant. It shows that despite some fair words in the rest of the "vision" document, in important ways European publishers are just as selfish and cynical as ever.

from the licensing-insanity dept

A couple years ago, we wrote about the nutty situation in which state regulators for all sorts of industries are really doing more to simply stop competition, rather than any sort of "consumer protection." This is not to say that there isn't a role for regulation in protecting consumers. There may well be, but the more you look at how it works, the more you realize how the system is almost inevitably gamed to be about blocking upstarts and competitors. In the example in that story, we talked about a woman who got in trouble for braiding people's hair without a "cosmetology" license.

Now we've got something happening in California that is even more related to things we're interested in, though no less ridiculous. The California Bureau for Private Postsecondary Education (BPPE) has sent cease-and-desist letters to a bunch of organizations who run "learn to code" events, claiming that they're teaching coding without a license and need to be shut down.

In mid-January, the Bureau for Private Postsecondary Education (BPPE) sent cease and desist letters to Hackbright Academy, Hack Reactor, App Academy, Zipfian Academy, and others. General Assembly confirmed that it began working with BPPE several months ago in order to achieve compliance.

BPPE, a unit in the California Department of Consumer Affairs, is arguing that the bootcamps fall under its jurisdiction and are subject to regulation. BPPE is charged with licensing and regulating postsecondary education in California, including academic as well as vocational training programs. It was created in 2010 by the California Private Postsecondary Education Act of 2009, a bill aimed at providing greater oversight of the more than 1,500 postsecondary schools operating in the state.

The intent here may be admirable. There are various scam "post secondary education" offerings that don't really provide anyone anything of value and over promise what they're offering. But coding bootcamps are something else entirely. The various groups are saying they're interested in complying with whatever regulations are necessary, but are also worried about the cost and the time that it will take for this process to run its course. Bureaucracies aren't known for their efficiency (or their inexpensiveness).

from the not-enhance-them dept

The latest in our posts for Copyright Week explores the concept of "you bought it, you own it," and how that's going away thanks to copyright. What's funny (or depressing) is that copyright's strongest defenders like to claim that protecting stronger copyright is about increasing "property rights." We've long since pointed out that copyright and property are very different. Property, as a concept, was developed to better manage the efficient allocation of scarce resources. But when something isn't scarce, it simply makes no sense to have a property right around it.

But we're not here to discuss whether or not copyright is or isn't property right now. Instead, let's look at how copyright has fundamentally taken away property rights from many. And let's start out with a look back into history. This isn't something that is necessarily new. You can go all the way back to 1773 and the famous case in Scotland of Hinton v. Donaldson, in which Lord Kames was already aware of how excessive copyright can interfere with real property rights:

What is then the nature of the pursuer's right? He does not pretend to say, that it is a right to any corpus, to any subject that can be possessed, or that can be stolen from him. Ergo, it is not property. Taking it in all views, no more can be made of it than to be a privilege or monopoly, which entitles the claimant to the commerce of a certain book, and excludes all others from making money by it. The important question then is, from what source is this monopoly derived, a monopoly that endures for ever, and is effectual against all the world? The act of Queen Anne bestows this monopoly upon authors for a limited time upon certain conditions. But our legislature, far from acknowledging a perpetual monopoly at common law, declares that it shall last no longer than a limited time.

But to follow out the common law. The composer of a valuable book has great merit with respect to the public: his proper reward is approbation and praise, and he seldom fails of that reward. But what is it that entitles him to a pecuniary reward? If he be entitled, the composer of a picture, of a machine, and the inventor of every useful art, is equally entitled. Such a monopoly, so far from being founded on common law, is contradictory to the first principles of society. Why was man made a social being, but to benefit by society, and to partake of all the improvements of society in its progress toward perfection? At the same time, he was made an imitative being, in order to follow what he sees done by others. But to bestow on inventors the monopoly of their productions, would in effect counteract the designs of Providence, in making man a social and imitative being: it would be a miserable cramp upon improvements, and prevent the general use of them. Consider the plough, the loom, the spinning wheel. Would it not sound oddly, that it would be rank injustice for any man to employ these useful machines, without consent of the original inventors and those deriving right from them? At that rate, it would be in the power of the inventors to deprive mankind both of food and raiment. The gelding of cattle for food, was not known at the siege of Troy. Was the inventor entitled to a monopoly so as to bar others from gelding their cattle? What shall be said of the art of printing? If the monopoly of this useful art was to be perpetual, it would be a sad case for learned men, and for the interest of learning in general: it would enhance the price of books far beyond the reach of ordinary readers. Such a monopoly would raise a fund sufficient to purchase a great kingdom. The works alone of Shakespeare, or of Milton, would be a vast estate. Te art of making salt water fresh is a very late invention. Was it ever dreamed to be a transgression against property, to use that art without consent of the inventor?

I observe, in the next place, that this claim, far from being founded on property, is inconsistent with it. The privilege an author has by statute, is known to all the world. But I purchase a book not entered in Stationer's hall; does it not become my property? I see a curious machine, the fire engine, for example. I carry it away in my memory, and construct another by it. Is not that machine, the work of my own hand, my property? I buy a curious picture, is there any thing to bar me from giving copies without end? It is a rule in all laws, that the commerce of moveables ought to be free; and yet, according to the pursuer's doctrine, the property of moveables may be subjected to endless limitations and restrictions that hitherto have not been thought of, and would render the commerce of moveables extremely hazardous. At any rate, the author of avery wise or witty saying, uttered even in conversation, has a monopoly of it; and no man is at liberty to repeat it.

Lord Kames immediately understands the dangerous nature of how copyright can actually interfere with the property rights of others, and it's a situation that has gotten significantly worse over time, especially now that all sorts of things -- digital and physical -- include code or other content that can be covered by copyright law. And, as such, things that we "buy" every day are no longer actually being bought, but rather licensed -- and with that license comes all of the restrictions that Lord Kames mocked as crazy centuries ago.

Last year, Alex Cummings wrote an excellent article discussing the end of property rights, because copyright was slowly being used to take those rights away, and how it's only getting worse:

Today, we see a renewed attack on the rights of consumers by big business. Overly zealous regulation means that consumers are essentially barred from "unlocking" a cell phone, or severing the device from its original wireless carrier. Critics warn that such restrictions not only limit the rights of consumers but threaten to stifle old-fashioned tinkering and innovation. It is as if Ford told customers that they can't pop the hood of their car and mess around its inner workings (which is how the world got NASCAR, incidentally).

How far should a phone company's power extend into our personal lives when we buy one of their products? When you buy a phone or an MP3, is it really yours—or has a company just loaned it to you with a laundry list of stipulations and provisos? The age of cloud computing is upon us, and soon most of our books, movies, and musics might have no material form. We may discover that buying something no longer means owning it in any meaningful sense—and our stuff isn't really ours anymore.

It used to be that if you bought something, you owned it. That's a property right. But that's being constantly eroded thanks to the over-aggressive use of copyright. Even worse, many of the worst abusers of this want the best of both worlds. They want to pretend something is a purchase when it benefits them, while arguing that same "purchase" is just a license at other times. It's Schrodinger's copyright. But the end result is the same: copyright is being used to take away basic property rights by hiding it in the fine print.

And that has massive implications for ownership, economics and innovation. True property rights are key to a functioning economy. But when everything you buy is not actually yours, and you're unable to do what you want with it, then you limit the ability to build up markets and to further innovate. So much innovation comes from someone taking something they've bought, tinkering with it, changing it, improving it, making it useful for other purposes. But in a world where copyright and control rule over all, you limit that kind of innovation, such that only the copyright holder (often not the initial creator) can control that innovation and process. And that rarely ends well.

So, yes, let's talk about property rights and how important they are. But if we're talking about copyright in that context, it needs to be by noting just how far copyright has gone to take away and destroy our basic property rights. And that's something that needs to change.

from the oops dept

One of the regular claims from the major labels and their representative groups, like the RIAA and BPI, is that copyright infringement is serious business, and everyone "knows" when copyright is being infringed. They always seem to brush off any claims of accidental infringement as if that's impossible. And then, of course, they get caught doing it themselves. Over the weekend, TorrentFreak had the story of how both the RIAA and BPI violated the terms of licenses for open source software they used on their website, which makes it infringing. To their credit, both organizations fixed the violations pretty quickly upon being contacted, but it again raises a larger point. With the state of copyright law today, it's incredibly easy to infringe. Law professor John Tehranian did some research a few years ago, into how much of his normal daily activity could be considered copyright infringement, and realized that under today's insane statutory damages rules, he had a daily liability of $12.45 million -- and that wasn't because he was downloading music. It was just everyday activities that people do all the time.

So, there shouldn't be anything wrong with the RIAA and BPI screwing up like this and infringing on some copyrights. It happens. But one would hope this leads those organizations to realize that their extreme claims about copyright infringement and their ridiculous support for statutory damages are way out of line with reality. But, since they remain such big supporters of statutory damages, and always seem to push for the maximum, would each organization be willing to donate $150,000 (the statutory maximum) to the open source projects which each of them used without a proper license? It seems only fair.